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REX
V.
JAMES ERNEST BANDOH
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
26TH DAY OF MAY, 1944
2PLR/1944/52 (WACA)
OTHER CITATION(S)
2PLR/1944/52 (WACA)
(1944) X WACA PP. 190 – 192
LEX (1944) – X WACA PP. 190 – 192
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
M’CARTHY, J.
SMITH, J.
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BETWEEN:
REX – Respondent
AND
JAMES ERNEST BANDOH – Appellant
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ORIGINATING COURT(S)
Appeal by the defendant from the decision of the Supreme Court sitting at Kumasi
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REPRESENTATION
E. O. Asafu-Adjaye — for Appellant
J. S. Manyo Plange, Crown Counsel — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Criminal Code, s. 359 – Perjury – Criminal Procedure Ordinance, ss. 202, 231-Particulars of offence – West African Court of Appeal Ordinance, s. 10(1), proviso.
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CASE SUMMARY
Defendant was convicted of perjury on a count which did not aver that he knew the statement he was alleged to have made was false or did not believe it to be true.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
(1) an information for perjury should contain an averment that the defendant knowingly falsely swore or did not believe to be true what he is alleged to have stated, otherwise the information is defective;
(2) such a defect may be cured by amendment, but that if left uncured it vitiates the information;
(3) it would not be proper to let the conviction stand where the defendant has not been given reasonable information as to the nature of the charge against him.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Appellant was charged upon information in the Supreme Court of the Gold Coast at the Kumasi Assizes upon three counts of “Perjury contrary to section 359 of the Criminal Code.” He was convicted upon the 1st count only and sentenced to 1 year’s Imprisonment with Hard Labour. Against that conviction he has appealed to this Court upon eleven grounds, but we have only found it necessary to hear argument upon one ground, viz., No. 11 in order to dispose of the appeal. That ground reads as follows:-
”That the conviction is wrong in law; in that the charge preferred against the accused and upon which he was convicted did not disclose a triable offence in law.
‘Nowhere in the charge is it stated that the statement alleged to have been made by the appellant was false to his knowledge or that he did no: believe same to be true.”
The particulars given upon count 1 read:
”James Ernest Bandoh on the 4th day of August, 1942, at Kumasi 1: Ashanti, being a witness upon the trial of a suit in the Divisional Court of the Supreme Court of the Gold Coast holden at Kumasi aforesaid in which the said James Ernest Bandoh, one Kweku Daboni and one Kofi Fetua were plaintiffs and one C. H. Dickson and one B. D. Addai were defendants, in a verbal statement mad e by him (the said James Ernest Bandoh) upon oath before the said Court stated that no Management Shares of the Ashanti Producers Corporation Limited had ever been issued.”
It is obvious that the ground of appeal is correct in stating that the charge does not allege that the Appellant’s statement was false to his knowledge or that he did not believe it to be true. The particulars do not even aver that the statement is untrue. In the form of indictment for perjury given at page 1221 of the 31st Edition of Archbold’s Criminal Pleading, Evidence and Practice the essential words “knowingly falsely swore” are used; and we are of opinion that it is essential in an information for perjury that the particulars should contain an averment either in those terms or in terms which make it clear that the statement alleged to have been made is also alleged to be false, and false to the knowledge of the accused or that he did not believe it to be true.
In England, until the enactment of the Indictments Act, 1915, the omission of a material part of the indictment was fatal to the prosecution.
In Reg. v. James & Another (1871) 12 Cox, 127, Lush, J. said at page 128:
“I must hold the words ‘with intent to defraud’ to be a material part of the indictment, nor can I amend it under the 14 & 15 Vict. c. 100, s. 1, and as the words are not inserted, their omission is I think, fatal to the prosecution, therefore this indictment must be quashed.”
And, though the Indictments Act, 1915, gave power to amend a defective indictment during the trial, if no such amendment is made presumably the defect is still fatal to a conviction.
Provisions similar to those of the English Indictments Act, 1915, exist in the Gold Coast; they are set out in section 202 of the Criminal Procedure Ordinance (Cap. 10), and the power of amendment is contained in section 231. That power of amendment could, and, in our opinion, should, have been exercised in the present case, but it was not; with the result that the trial was completed and the Appellant convicted upon an information defective upon the face of it.
Section 202 of the Criminal Procedure Ordinance provides inter alia that:
”Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”
We are of opinion that the particulars given in the present case fail to state what is necessary for giving reasonable information as to the nature of the charge, and that consequently the information is bad.
Learned Counsel for the Crown has asked us to exercise the discretion conferred upon the Court by the proviso to section 10(1) of the West African Court of Appeal Ordinance (Cap. 5) and to refrain from quashing the conviction on the ground that no substantial miscarriage of justice has actually occurred. The principles upon which a Court of Criminal Appeal should act in applying the corresponding provisions of the English Criminal Appeal Act, 1907 were considered by the English Court of Criminal Appeal in the case of R. v. Thompson (9 Cr. App. Rep., 252), and we do not think those principles go so far as to justify the use of the proviso where an accused person has not been given reasonable information as to the nature of the charge against him. In our view the point raised is no mere technicality, since we think that there is a very real danger that an accused person, especially an illiterate person to whom the charge and particulars have to be translated, may admit the correctness of such particulars and have a plea of guilty recorded against him, when he would have pleaded Not Guilty to a charge with properly framed particulars and perhaps have been acquitted.
For these reasons the appeal is allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict of acquittal be entered. The Appellant is discharged.
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